Flanner House of Indianapolis, Inc. v. Flanner House Elementary School, Inc., Aliza Anderson, Chi Blackburn, Lorri Bryant, Dr. Cathi Cornelius, Robert Dotson, Brooke Dunn, Frances L. Hudson

FILED
Dec 04 2017, 6:03 am

CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEES
Zachary S. Kester Scott L. Bunnell
Charitable Allies, Inc. Joshua A. Atkinson
Indianapolis, Indiana Michelle K. Floyd
Hunt Suedhoff Kalamaros LLP
Fort Wayne, Indiana
Attorneys for Patricia Roe

Linda L. Vitone
Kimberly E. Howard
Smith Fisher Maas Howard & Lloyd, PC
Indianapolis, Indiana
Attorneys for Aliza Anderson, Lorri
Bryant, Dr. Cathi Cornelius, Lauren
Peterson, Lauren Wright, and Robert
Dotson
John W. Mervilde
Rick D. Meils
Meils Thompson Dietz & Berish
Indianapolis, Indiana
Attorneys for Marshawn Wolley
Jeffrey D. Hawkins
Mark D. Gerth
Adam S. Ira
Kightlinger & Gray, LLP
Indianapolis, Indiana
Attorneys for Chi Blackburn, Brooke
Dunn, Frances L. Hudson, Tanjla
Lawrence, Frances Malone, Latika
Warthaw, Flanner House Elementary
School, Inc.
Curtis T. Hill, Jr.
Attorney General of Indiana
Kyle Hunter
Deputy Attorney General
Indianapolis, Indiana
Attorneys for the State of Indiana

Court of Appeals of Indiana | Opinion 49A02-1612-PL-2942 |December 4, 2017 Page 1 of 21
 IN THE
COURT OF APPEALS OF INDIANA

Flanner House of Indianapolis, December 4, 2017
Inc., Court of Appeals Case No.
49A02-1612-PL-2942
Appellant-Plaintiff,
Appeal from the Marion Superior
v. Court.
The Honorable John F. Hanley,
Judge.
Flanner House Elementary Trial Court Cause No.
School, Inc., Aliza Anderson, 49D11-1508-PL-26396
Chi Blackburn, Lorri Bryant, Dr.
Cathi Cornelius, Robert Dotson,
Brooke Dunn, Frances L.
Hudson, Tanjla Lawrence,
Frances Malone, Lauren
Peterson, Patricia Roe, Latika
Warthaw, Marshawn Wolley,
Lauren Wright, and Liberty
Mutual Insurance Group,
Appellees-Defendants,

and

State of Indiana,

Appellee-Intervenor.

Friedlander, Senior Judge

Court of Appeals of Indiana | Opinion 49A02-1612-PL-2942 |December 4, 2017 Page 2 of 21
[1] Flanner House of Indianapolis, Inc. (Flanner House) appeals the trial court’s

entry of summary judgment in favor of Flanner House Elementary School, Inc.

(Flanner School, Inc.) and its individual directors and officers (collectively
1
“Appellees”). We affirm.

[2] Flanner House presents three issues for our review, which we restate as:

1. Whether the trial court erred in granting summary judgment in
favor of the Appellees on the issue of compliance with the notice
requirement of the Indiana Tort Claims Act (the Act).
2. Whether application of the Act to charter schools and their
organizers violates the equal privileges and immunities clause of
the Indiana Constitution.
3. Whether application of the Act to charter schools and their
organizers violates the open courts clause of the Indiana
Constitution.
[3] Flanner School, Inc. is a nonprofit Indiana corporation that was established in

early 2002. On February 27, 2002, Flanner School, Inc. entered into a charter

school agreement with the Mayor of Indianapolis to establish a charter school

named Flanner House Elementary School (Elementary School). Flanner

School, Inc. operated the Elementary School as a charter school under this

agreement until its charter was revoked on September 11, 2014. During that

1
Flanner House filed a motion to dismiss Chi Blackburn, Brooke Dunn, and Frances Malone, which the trial
court granted on November 21, 2016. On January 24, 2017, Tanjla Lawrence was also dismissed from the
case. Finally, on February 6, 2017, the trial court granted Flanner House and Liberty Mutual Insurance
Group’s stipulation of dismissal of Liberty Mutual from this cause.

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 time, Flanner School, Inc. leased its school building from Flanner House, a

separate nonprofit Indiana corporation.

[4] In August 2015, Flanner House sued Flanner School, Inc. for breach of

contract, sued the Appellees for negligence and fraud, and sued Liberty Mutual

Insurance Group for bad faith. In its complaint, Flanner House alleged that

Flanner School, Inc. breached the lease by failing to pay monthly rent and that

the Appellees owed a duty to Flanner House, which they recklessly breached by

failing to hold regular meetings, operating the school without adequate

oversight, and failing to adequately oversee the financial and educational

activities of the school. To support its claims of fraud, Flanner House also

claimed that the Appellees made false statements that caused it harm. In

November 2016, on Flanner House’s motion, the trial court dismissed all of the

fraud claims.

[5] From July through October 2016, the Appellees, some individually and some

jointly, filed motions for summary judgment. All of the Appellees argued that

Flanner House had not provided them with notice under the Act, and Appellee

Patricia Roe additionally argued in the alternative that no duty was owed to

Flanner House. Flanner House responded that the Appellees were not entitled

to notice under the Act and alleged that extending the protections of the Act to

the Appellees violates the Indiana Constitution. Having received notice from

the court that the constitutionality of the Act was being challenged in this

action, the State filed motions to intervene and to bifurcate the constitutional

issues, both of which were granted. After hearing argument on the motions for

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 summary judgment, the trial court entered final judgment for the Appellees.

This appeal followed.

[6] On appeal from a summary judgment, we apply the same standard of review as

the trial court: summary judgment is appropriate only where the designated

evidentiary matter shows there is no genuine issue as to any material fact and

that the moving party is entitled to judgment as a matter of law. Young v. Hood’s

Gardens, Inc., 24 N.E.3d 421 (Ind. 2015); see also Ind. Trial Rule 56(C). Where

the challenge to the trial court’s summary judgment ruling presents only legal

issues, not factual ones, we review the issues de novo. Ballard v. Lewis, 8

N.E.3d 190 (Ind. 2014).

1. “Charter School”
[7] Flanner House asserts the trial court erred by granting summary judgment for

the Appellees on the issue of its compliance with the tort claim notice

requirement. The Act governs civil lawsuits against governmental entities and
2
their employees. Ind. Code §§ 34-13-3-1 (1998), -3 (2016). Under the dictates

of the Act, a charter school is a governmental entity. Ind. Code § 34-6-2-49(a)

(2013). The Act provides that a claim against a governmental entity is barred

unless notice is filed with the governing body of the governmental entity within

180 days after a loss occurs. Ind. Code § 34-13-3-8 (1998).

2
There being no disagreement about the particular version of a statute applicable to this case, we cite the
current version for the sake of efficiency and ease of the reader, unless otherwise noted.

Court of Appeals of Indiana | Opinion 49A02-1612-PL-2942 |December 4, 2017 Page 5 of 21
[8] In this litigation, Flanner House did not provide notice of its claims to the

Appellees as required by the Act. The thrust of Flanner House’s argument is

that Flanner School, Inc. is not a “charter school,” as that term is used in the

Act, and therefore is not entitled to the notice required under the Act.

Although Flanner House acknowledges that the Elementary School is a charter

school, it contends Flanner School, Inc. is not a charter school but is instead an

organizer of a charter school and therefore a distinct entity from the charter

school itself. Accordingly, Flanner House argues that Flanner School, Inc. is

not entitled to the notice provisions of the Act because it is not a governmental

entity under the Act. The question before us then is whether our legislature

intended to include the nonprofit organizer of a charter school in the meaning

of that term for purposes of the Act.

[9] A question of statutory interpretation is a matter of law, and we are neither

bound by, nor are we required to give deference to, the trial court’s

interpretation. Perry-Worth Concerned Citizens v. Bd. of Comm’rs of Boone Cnty.,

723 N.E.2d 457 (Ind. Ct. App. 2000), trans. denied. Accordingly, our review is

de novo. Ballard, 8 N.E.3d 190. When interpreting a statute, we look to the

express language of the statute and the rules of statutory construction. Ind. State

Teachers Ass’n v. Bd. of Sch. Comm’rs of City of Indianapolis, 693 N.E.2d 972 (Ind.

Ct. App. 1998). This court is required to ascertain and execute legislative intent

and to interpret the statute in such a manner as to prevent absurdity and to

advance public convenience. Id. In so doing, we must be aware of the purpose

of the statute, as well as the effect of such an interpretation. Id. We read the

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 individual sections of an act as a whole and strive to give effect to all of its

provisions such that no part of the act is held meaningless if it can be reconciled

with the rest of the statute. Citizens Action Coal. of Ind., Inc. v. Ind. Statewide Ass’n

of Rural Elec. Coops., Inc., 693 N.E.2d 1324 (Ind. Ct. App. 1998). We presume

that our legislature intended its language to be applied in a logical manner

consistent with the underlying goals and policy of the statute. Id. Moreover, in

this case we are mindful that because the Act is in derogation of the common

law, it must be strictly construed against limitations on a claimant’s right to

bring suit. Simpson v. OP Prop. Mgmt., LLC, 939 N.E.2d 1098 (Ind. Ct. App.

2010).

[10] A charter school is a public elementary school that is established by and

operates under a charter. Ind. Code § 20-24-1-4 (2005). A charter is a contract

between an organizer (a nonprofit corporation and its independent board) and

an authorizer (the executive of a consolidated city) for the establishment of a

charter school. Ind. Code §§ 20-24-1-3 (2013), -7 (2017), and -2.5(3) (2015). In

the present case, Flanner School, Inc. is the organizer, and the Mayor of

Indianapolis is the authorizer.

[11] To establish a charter school, an organizer may submit to the authorizer a

proposal, which is a detailed implementation plan that includes both

governance and educational matters, all of which are the ultimate responsibility

of the organizer. The proposal must contain at least the following information:

(1) identification of the organizer,

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(2) a description of the organizer’s organizational structure and governance
plan,

(3) the following information for the proposed charter school:

(a) name,

(b) purposes,

(c) governance structure,

(d) management structure,

(e) educational mission goals,

(f) curriculum and instructional methods,

(g) methods of pupil assessment,

(h) admission policy and criteria,

(i) school calendar,

(j) age or grade range of students to be enrolled,

(k) description of staff responsibilities,

(l) description of the physical plant,

(m) budget and financial plans,

(n) personnel plan, including methods for selection, retention, and
compensation of employees,

(o) transportation plan,

(p) discipline program,

(q) plan for compliance with any applicable desegregation order,

(r) date when the charter school is expected to:

(i) begin school operations, and

(ii) have students attending the charter school,

Court of Appeals of Indiana | Opinion 49A02-1612-PL-2942 |December 4, 2017 Page 8 of 21
 (s) arrangement for providing teachers and other staff with health
insurance, retirement benefits, liability insurance, and other benefits, and

(4) the manner in which the authorizer must conduct an annual audit of the
program operations of the charter school.

See Ind. Code § 20-24-3-4 (2017).

[12] The authorizer reviews and evaluates the application under criteria consistent

with nationally recognized principles and informs the organizer whether the

proposal is accepted or rejected. Ind. Code §§ 20-24-3-4.5 (2015) and -9 (2017).

If the proposal is rejected, the organizer may amend and resubmit the proposal

to the same authorizer or submit a proposal to another authorizer. Ind. Code §

20-24-3-11 (2017). If the proposal or amended proposal is accepted, the

organizer is granted a charter by the authorizer, and the organizer may begin

operation of the charter school in accordance with the operating plan as

submitted in its proposal as well as the rights and obligations set forth in its

charter. Ind. Code § 20-24-3-1 (2013), see also Ind. Code § 20-24-4-1 (2017)

(setting forth charter requirements).

[13] The organizer’s duties do not end when the charter is signed and the charter

school is operational. Once established, each charter school must set annual

performance targets designed to help the school meet applicable federal, state,

and authorizer expectations. Ind. Code § 20-24-4-1(b). Moreover, at the time

period covered by Flanner House’s complaint, the organizer was required each

year to submit to the department of education information concerning: (1) the

number of students enrolled in the charter school, (2) the name and address of

each student, (3) the name of the school corporation in which the student has
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 legal settlement, (4) the name of the school corporation, if any, that the student

attended during the immediately preceding school year, and (5) the grade level

in which the student will enroll in the charter school. Ind. Code § 20-24-7-2

(2009) and (2013).

[14] Additionally, the organizer is the fiscal agent for the charter school and has

exclusive control of the financial matters of the school and of funds received by

the school. Ind. Code § 20-24-7-1 (2015). On behalf of a charter school, an

organizer may apply for and accept independent financial grants and funds

from sources other than the department of education. Further, an organizer

must make all applications, enter into all contracts, and sign all documents

necessary for aid, money, or property received by the charter school from the

federal government. Ind. Code § 20-24-7-5 (2005). An organizer also may be

requested at any time to provide to the authorizer the financial reports of the

school. Ind. Code § 20-24-7-8 (2013).

[15] Moreover, the organizer is required to publish an annual performance report

that provides information regarding student enrollment, graduation rate,

attendance rate, test scores, average class size, the school’s performance

category, number and percentage of students in special programs, advanced

placement, course completion, percentage of graduates considered college and

career ready, school safety, financial information, teacher

certification/licensing, percentage of grade 3 students reading at grade 3 level,

number of students expelled, chronic absenteeism, habitual truancy, number of

students who have dropped out of school, number of in and out of school

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 suspensions, number of student work permits revoked, and number of students

receiving an international baccalaureate diploma. Ind. Code §§ 20-24-9-6

(2005), 20-20-8-8 (2017).

[16] If an organizer is notified by the authorizer that it is failing to comply with the

conditions of the charter, applicable federal and state laws, or generally

accepted fiscal management and government accounting principles, or if the

school is failing to meet the educational goals set out in the charter, it must

remedy the deficiencies or face revocation of the school’s charter. Ind. Code §

20-24-9-4 (2017). The authorizer also has the authority to decline to renew a

school’s charter. In both instances, the organizer is allowed representation by

counsel and time to prepare a response, as well as an opportunity to submit

documents and testimony in support of continuation of the charter school. Ind.

Code § 20-24-4-3 (2013). In the event of a school closing, the organizer must

ensure the transfer of all school records, including student records, to the

department of education. Ind. Code § 20-24-9-4.6 (2017).

[17] As demonstrated by the statutes, the organizer determines the organization and

management of the school, receives the charter for the charter school, is

responsible for the implementation of the charter, is accountable for the

financial and academic viability of the school, and insures compliance with

federal and state laws and authorizer expectations. A charter school cannot

exist without an organizer, and the organizer is required to have nonprofit

status. Based upon our review of the relationship, responsibilities, duties, and

authority of a charter school organizer as set out in these statutes, we conclude

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 that an organizer of a charter school is not an entity separate from the charter

school. Rather, an organizer and a charter school jointly are the charter school.

[18] In making this determination, we note the similarity of charter school

organizers to public school corporations, and we recognize that organizers are

indeed considered school corporations for certain state and federal funding

opportunities. Ind. Code § 20-24-7-15 (2016). Public school corporations are

political subdivisions under the Act with governing bodies (boards) that

administer the affairs of the school corporations. Ind. Code § 34-6-2-110(9)

(2007); Ind. Code § 20-26-2-2 (2005). Like charter school organizers, public

school corporations may take charge of, manage, and conduct the educational

affairs of the school corporation; employ certain staff; make budgets and

appropriate and disburse funds; make all applications, enter into contracts, and

sign all documents necessary for the receipt of aid, money, or property from the

state, the federal government, or any other source. Ind. Code § 20-26-5-4

(2016). Additionally, public school corporations are required by Indiana Code

section 20-20-8-3 (2015) to publish an annual performance report.

[19] Thus, we conclude that an organizer of a charter school is included in the term

“charter school” for purposes of Ind. Code § 34-6-2-49(a). Accordingly,

Flanner School, Inc. was entitled to notice of Flanner House’s claims as

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 provided for in the Act, and the trial court properly granted summary judgment
3
for Flanner School, Inc.

[20] Understanding that Flanner House gave no notice of its tort claim and having

determined that a charter school organizer is a “charter school” and entitled to

notice of Flanner House’s tort claim, we turn to the charter school directors and

officers named by Flanner House as additional defendants. The notice

requirement of the Act applies not only to suits against governmental entities

but also to suits against employees of governmental entities. Ind. Code § 34-13-

3-3; Davidson v. Perron, 716 N.E.2d 29 (Ind. Ct. App. 1999), trans. denied.

[21] We further note that the Act prohibits suits against individual board members

concerning acts taken by the board where the member was acting within the

scope of the member’s employment. Ind. Code § 34-13-3-5 (2003). A suit filed

against a board member individually must allege, including a reasonable factual

basis, an act or omission by the member that is criminal, clearly outside the

scope of the employee’s employment, malicious, willful and wanton, or

calculated to benefit the employee personally. Id. Here, Flanner House named

the directors and officers individually concerning their actions taken as a whole

board. There were no allegations of individual board members acting outside

3
In the Statement of the Facts section of its brief to this Court, Flanner House briefly mentions that Appellee
Wolley had notice of its claim. See Appellant’s Br. p. 16. To the extent that this could be considered an
argument of substantial compliance with the notice provision under the Act, Flanner House’s claim is waived
for failure to present cogent argument and citation to authority. See Thacker v. Wentzel, 797 N.E.2d 342 (Ind.
Ct. App. 2003) (stating this Court will not consider appellant’s assertion on appeal when appellant fails to
develop argument and present cogent argument supported by authority); see Ind. Appellate Rule 46(A)(8)(a).

Court of Appeals of Indiana | Opinion 49A02-1612-PL-2942 |December 4, 2017 Page 13 of 21
 the scope of their employment or in an improper manner. Thus, entry of

summary judgment for the directors and officers was also proper based upon

Flanner House’s failure to provide a notice of tort claim.

2. Equal Privileges and Immunities Clause
[22] By granting summary judgment for the Appellees, the trial court implicitly

found constitutional the provisions of the Act relating to charter schools.

Flanner House claims that application of the Act to include not only charter

schools but also their organizers violates two provisions of the Indiana

Constitution.

[23] When a statute is challenged as violating the Indiana Constitution, our standard

of review is well settled. “A statute is presumed constitutional until the party

challenging its constitutionality clearly overcomes the presumption by a

contrary showing.” VanDam Estate v. Mid-America Sound, 25 N.E.3d 165, 168

(Ind. Ct. App. 2015), trans. denied. If there are two reasonable interpretations of

the statute, one constitutional and the other not, we will choose the

interpretation that will uphold the constitutionality of the statute. Sims v. U.S.

Fid. & Guar. Co., 782 N.E.2d 345 (Ind. 2003). We do not presume the General

Assembly violated the constitution unless we are compelled to do so by the

unambiguous language of the statute. VanDam Estate, 25 N.E.3d 165. This

Court should nullify a statute on constitutional grounds only where such result

is clearly rational and necessary. Id.

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[24] First, Flanner House asserts that extending the notice and governmental

immunity provisions of the Act to charter schools and their organizers violates

the equal privileges and immunities clause. Article I, section 23 of the Indiana

Constitution provides, “The General Assembly shall not grant to any citizen, or

class of citizens, privileges or immunities, which, upon the same terms, shall

not equally belong to all citizens.” To determine a statute’s validity under this

provision, we employ a two-part test: 1) the disparate treatment accorded by

the legislation must be reasonably related to inherent characteristics that

distinguish the unequally treated classes, and 2) the preferential treatment must

be uniformly applicable and equally available to all persons similarly situated.

Whistle Stop Inn, Inc. v. City of Indianapolis, 51 N.E.3d 195 (Ind. 2016). Both

parts of the test must be satisfied for the statute to be constitutional. Id. In

evaluating a statute under this test, we must give considerable deference to

legislative discretion. Giles v. Brown Cty., 868 N.E.2d 478 (Ind. 2007). Further,

the burden is on the party challenging the statute to negate every conceivable

basis for disparate treatment of two classes. Whistle Stop Inn, Inc., 51 N.E.3d

195.

[25] Flanner House contends the disparately treated classes are charter schools,

private schools, and nonprofit corporations. Flanner House, however, does not

engage in any meaningful discussion or analysis of the required two-part test.

Instead, it merely argues that allowing charter schools and their organizers to be

protected by the Act is unfair, and it characterizes charter schools as having

only public school “status” for the purpose of dealing with students and their

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 parents but maintains that charter schools are actually private, nonprofit

corporations with regard to their transactions with other businesses.

Appellant’s Br. p. 29.

[26] Charter schools are neither private schools nor nonprofit corporations; rather,

by the plain terms of the statute creating them, they are public schools. See Ind.

Code § 20-24-4-1. Contrary to Flanner House’s argument, this legislative

designation does not change depending on with whom the charter school is

dealing. Further, although an organizer of a charter school is an entity that has

been determined by the Internal Revenue Service to be operating under

nonprofit status, see Ind. Code § 20-24-1-7, it is not a nonprofit entity separate

from the school. Rather, as we determined earlier in this opinion, an organizer

and a charter school, together, are the charter school. See Issue 1, supra. As

discussed previously in this opinion, charter schools must be organized and

operate according to a charter agreement and are subject to extensive,

particularized statutes for their governance and educational matters with a

considerable level of governmental oversight. These stringent statutory

guidelines and requirements apply only to charter schools and their organizers

who, although having the status of a nonprofit entity, are a very specific type of

nonprofit performing under a specific charter agreement as the organizer,

administrator, and fiscal agent of a charter school. These characteristics are

unique and inherent to charter schools, and they distinguish charter schools

from both private schools and other nonprofit corporations.

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[27] In addition, the disparate treatment conferred by the legislation must be

reasonably related to the inherent characteristics differentiating the classes.

Whistle Stop Inn, Inc., 51 N.E.3d 195. As our Supreme Court has explained:

Legislative classification becomes a judicial question only where
the lines drawn appear arbitrary or manifestly unreasonable. So
long as the classification is based upon substantial distinctions
with reference to the subject matter, we will not substitute our
judgment for that of the legislature; nor will we inquire into the
legislative motives prompting such classification.
Collins v. Day, 644 N.E.2d 72, 80 (Ind. 1994).

[28] The matter of developing the public school system rests with the legislature,

which has considerable discretion as to the methods of organization and

administration of the system. Hoagland v. Franklin Twp. Cmty. Sch. Corp., 27

N.E.3d 737 (Ind. 2015). In exercising this discretion, the legislature established

charter schools as unique education entities that exist as public schools. The

legislature also classified charter schools as government entities for purposes of

the Act. In fact, all public schools are classified as government entities under

the Act. See Ind. Code § 34-6-2-110(9).

[29] The Act was adopted to establish procedures for cases involving the prosecution

of tort claims against governmental entities. Hasty v. Floyd Mem’l Hosp., 612

N.E.2d 119 (Ind. Ct. App. 1992). By establishing notice requirements and

limitations on recovery from government entities, including public schools, the

Act advances the legislative policies of protecting the State’s finances while

ensuring that public employees can exercise their independent judgment

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 necessary to carry out their duties without the threat of civil litigation over

decisions they make within the scope of their employment. Noble Cty. v. Rogers,

745 N.E.2d 194 (Ind. 2001). By their very definition, charter schools are public

schools, and, as such, they are reasonably classified by the legislature as

governmental entities under the Act as are traditional public schools. See Meury

v. Eagle-Union Cmty. Sch. Corp., 714 N.E.2d 233 (Ind. Ct. App. 1999) (citing Ind.

Code § 34-13-3-8 and stating that notice provision of Act applies to public

school corporations and their employees).

[30] Moreover, the legislative intent underlying the establishment of charter schools

was to provide innovative and autonomous programs that serve the different

learning styles and needs of public school students, offer public school students

appropriate and innovative choices, provide varied opportunities for

professional educators, allow public schools freedom and flexibility in exchange

for exceptional levels of accountability, and provide parents, students,

community members, and local entities with an expanded opportunity for

involvement in the public school system. Ind. Code § 20-24-2-1 (2005). By

extending the liability protections of the Act to charter schools, the legislature

furthered its overall purpose of providing innovative programs for public school

students and educators while preserving the public treasury and protecting

public employees acting within the scope of their employment. We conclude

the disparate application of the Act in this instance constitutes treatment that is

reasonably related to the inherent characteristics that differentiate charter

schools from private schools and other nonprofit corporations.

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[31] As to the second part of the test, Flanner House does not dispute that the

preferential treatment of charter schools under the Act is uniformly applicable

and equally available to all charter schools. Flanner House has not met its

burden to negate every conceivable basis which might support the
4
classification. We conclude that application of the notice and liability

limitations of the Act to charter schools is constitutional under section 23.

3. Open Courts Clause
[32] Flanner House asserts that extending the immunity under the Act to charter

schools and their organizers will violate the open courts clause of the Indiana

Constitution. The open courts clause provides: “All courts shall be open; and

every person, for injury done to him in his person, property, or reputation, shall

have remedy by due course of law. Justice shall be administered freely, and

without purchase; completely, and without denial; speedily, and without

delay.” Ind. Const. art. I, § 12.

[33] The courts of our state have uniformly held that in cases involving injury to

person or property, article I, section 12 does not prevent the legislature from

modifying or restricting common law rights and remedies. McIntosh v. Melroe

4
In arguing that application of the Act in this case violates our state’s equal privileges and immunities clause,
Flanner House states that the damages it sustained stem from its contractual relationship with Flanner School
Inc. and that applying the Act to charter schools and their organizers improperly gives the government a
competitive advantage in its commercial dealings, such as entering leases. These contentions are not
applicable here as the Act provides immunity for governmental entities only with regard to civil actions in
tort. See Ind. Code § 34-13-3-1; see also Orem v. Ivy Tech State Coll., 711 N.E.2d 864 (Ind. Ct. App. 1999)
(holding the Act is inapplicable to breach of contract cause of action), trans. denied.

Court of Appeals of Indiana | Opinion 49A02-1612-PL-2942 |December 4, 2017 Page 19 of 21
 Co., a Div. of Clark Equip. Co., Inc., 729 N.E.2d 972 (Ind. 2000). Yet, the

legislature’s actions in this regard are not without limits; any legislative

alteration must not interfere with constitutional rights. Martin v. Richey, 711

N.E.2d 1273 (Ind. 1999). Legislation that restricts a complete tort remedy must

be a rational means to achieve a legitimate legislative goal. Id.

[34] As we have noted in this opinion, one of the primary concerns the Act was

intended to address was protection of the public treasury, and by extension the

taxpayers, from a multitude of tort lawsuits and the possibility of enormous

monetary liabilities if government entities were held legally accountable in civil

litigation in the same fashion as private entities and persons. VanDam Estate, 25

N.E.3d 165. With regard to governmental immunity in the Act, our supreme

court has stated, “In tort cases, the source of authority or lack thereof to sue the

State originally arose from rights at common law, not from rights contained in

the Constitution. Thus, it is within the legislature’s authority to expand or

restrict the scope of sovereign immunity through the Tort Claims Act.” State v.

Rendleman, 603 N.E.2d 1333, 1337 (Ind. 1992). Rendleman concerned a suit

against the State for damages allegedly sustained in a motor vehicle accident

involving Rendleman and an Indiana State Trooper. In holding that the law

enforcement immunity section of the Act was a constitutional exercise of

legislative authority, the Court stated: “That [the law enforcement immunity

section] may result in Rendleman bearing the full economic burden of his

injuries and damages without the ability to insure himself against such losses, is

a matter of policy for the legislature, not this Court, to address.” Id.

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[35] Similarly, the extension of the immunity provision of the Act to a charter

school and its organizer, which we determined are, jointly, a charter school, is a

rational means to achieve the legitimate legislative goal of protecting the public

treasury. Accordingly, we conclude that Indiana Code sections 34-13-3-3 and

34-6-2-49(a) reflect a proper exercise of the legislature’s authority and do not

violate article I, section 12 of the Indiana Constitution.

[36] Having concluded that the trial court properly entered summary judgment for

the Appellees and that there are no constitutional violations, we affirm the trial

court’s judgment.

[37] Judgment affirmed.

Mathias, J., and Crone, J., concur.

Court of Appeals of Indiana | Opinion 49A02-1612-PL-2942 |December 4, 2017 Page 21 of 21